Accreditation of Examiners for Certificates of Competency - General Terms and Conditions

Between The Director, Transport Safety and The Accredited Examiner

June 2012

PO Box 2797, Melbourne Vic 3001 www.transportsafety.vic.gov.au T 1800 223 022 E information@transportsafety.vic.gov.au Bus and Rail F (03) 9655 8929, Maritime F (03) 9655 6611

1.

Definitions and interpretations

In these TSV Maritime Accreditation of Examiners for Certificates of Competency

General Terms and Conditions unless the contrary intention appears the following words have the meaning attributed to them:
The table lists specific terms used in the General Terms and Conditions and gives a definition for the use of each in this document.

Term
Accredited Examiner

Definition
The person having the relevant vocational competencies

and adequate maritime experience and knowledge, accredited by the Safety Director to conduct oral examinations for the purpose of issuing a COC

Authority Certificate of competency (COC) Code of Practice

Authority means the statutory marine authority of the Commonwealth of Australia or of a state or territory within the Commonwealth. The certificate issued by the Safety Director under section 78 of the MSA

For the purpose of privacy provisions, means a code of

practice as defined in, and approved under, the Information Privacy Act 2000 (Vic)
The commencement of the Accredited Examiners accreditation as specified in the Letter of Accreditation The date specified in the of the Accredited Examiners Letter of Accreditation.

Commencement Date Completion Date

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Term
Confidential Information

Definition
All Information which is either directly or indirectly disclosed provided or made available by the Safety Director or TSV to the

Accredited Examiner or acquired by the Accredited Examiner from the Safety Director or TSV (whether orally, electronically, in writing or by any other means) in respect of or in connection with the training and assessment, whether before or after the signing of this accreditation and includes information pertaining to or connected in any way with the training and assessment, including but not limited to: (a) (b) (c) (d) (e) (f) (g)
Information about the Safety Director or TSV or those involved in TSV's activities, Information relating to the internal management and structure of TSV; Information concerning documentation, systems, technology and affairs, operations, processes, plans or inventions and product information (whether customers, suppliers or otherwise); financial, technological, strategic or business information, concepts, plans, strategies, directions or systems; research, development, operational, legal, marketing or accounting information, concepts, plans, strategies, directions or systems; technology, source and object codes for computer software; Information comprised in or relating to any Intellectual

Property rights of the State of Victoria, or third parties to whom the Safety Director or TSV owes a legal obligation; and (h) Eligible Applicant Information
know-how relating to computer software, financial techniques and products of the Safety Director or TSV.

A person who has fulfilled the requirements of NSCV Part D to

be eligible for a COC.

Includes information or data, whether:

(a) written, graphical, electronic, oral or in any other form,

irrespective of the form in which it was originally provided;

(b) provided in writing, graphically, electronically, orally or in any other way. Information Privacy Principles
The principles so identified and set out in the Information Privacy

Act 2000 (Vic).

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Term
Intellectual Property

Definition
Includes all intellectual property rights, title to, and interests in any jurisdiction whether protectable by statute, at common law or in equity, including without limitation: (a) patents, trade marks, service marks, copyright, registered designs, trade names, domain names, symbols and logos; patent applications and applications to register trade marks, service marks and designs; and techniques, computer programme code, specifications, rights in circuit layouts, ideas, concepts, know-how, data, inventions, discoveries, developments, trade secrets, information and logical sequences (whether or not reduced in writing or other machine or human readable form),

(b) (c)

and includes any improvements, advancements, modifications, discoveries and developments arising in relation to any of these.

Letter of Accreditation Maritime Training Package MSA MSR NSCV Part D Safety Director

The Safety Directors letter of approval to become an Accredited Examiner for the purpose of issuing COC. Maritime Training Package means the Transport and Logistics Industry Skills Council TDM07 Maritime Training Package Marine Safety Act 2010 (Vic) Marine Safety Regulations 2012 (Vic) National Standard for Commercial Vessels, Part D, Crew Competencies, as published by National Marine Safety Committee. The Director, Transport Safety, a statutory office established under s171 of the Transport Integration Act 2010 (Vic) (TIA) for the purpose of independently seeking the highest transport safety standards that are reasonably consistent with the vision statement and the transport system objectives set out in the same Act. Transport Safety Victoria

TSV

2.

Obligations of the Accredited Examiner

The Accredited Examiner must::

(a) (b) (c)

have qualifications that are listed in the application , and provide to the Safety Director proof of qualifications; and comply with: (i) these terms and conditions; (ii) the Accreditation of examiners for certificates of competency:

administration procedures.

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3.

Term
These Terms and Conditions shall commence on the Commencement Date and shall continue until the Completion Date unless terminated earlier pursuant to clause 9.

4.

Intellectual property
Ownership 4.1 All documents, data and other Information supplied to the Accredited Examiner by the Safety Director and any copies of them remain the property of the Safety Director. The Accredited Examiner may not use that material for any purpose other than for providing the examination service. The material may not be reproduced either fully or in part, without first receiving written approval by or on behalf of the Safety Director.

4.2

The Safety Director grants to the Accredited Examiner a non-transferable, nonexclusive, royalty free licence to use all Intellectual Property rights belonging to or licenced to the Safety Director which the Accredited Examiner reasonably requires to conduct the examination service.

4.3

The Safety Director will inform the Accredited Examiner of any material supplied by

the Safety Director in which third parties have relevant Intellectual Property rights and of any conditions attaching to that material because of those rights. The Accredited Examiner must use that material only in accordance with those conditions.
Return 4.4

Within thirty (30) days of the Completion Date or earlier termination of the accreditation and these Terms and Conditions, the Accredited Examiner must return to the Safety Director all Confidential Information (including all original items and copies of the Information).

5.

Privacy of individuals
5.1

The Accredited Examiner agrees to be bound by the Information Privacy Principles and any applicable Code of Practice with respect to any act done or practice engaged in by the Accredited Examiner for the purposes of these Terms and Conditions, in the same way and to the same extent as the Safety Director would have been bound in respect of that act or practice had it been directly done or engaged in by the Safety Director.

6.

Confidential Information
6.1 The Accredited Examiner must: (a) keep the relevant Information confidential; (b) at all times take reasonable measures to protect the Confidential Information; (c) not use the Confidential Information except for the purposes contemplated under these terms and Conditions;

(d)

6.2

notify the Safety Director immediately of any non-compliance with this clause or of any unauthorised persons having access to the Confidential Information; The obligations in clause 6.1 do not prevent the disclosure of Information:

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(a)

which at the time of disclosure is in the public domain as evidenced by printed publication or otherwise, or which the Accredited Examiner can demonstrate was in the public domain at the time of signing these Terms and Conditions without any breach by another party of a similar undertaking; which after disclosure becomes part of the public domain by publication or otherwise through no fault of the Accredited Examiner; which is received from a third party with good legal title to it and who did not receive the information either directly or indirectly from the Accredited Examiner; which is required to be disclosed by an order of any court of competent jurisdiction, tribunal or regulatory body; or which is required to be disclosed by any law or regulation having the force of

(b) (c) (d) (e)

6.3

law. The Accredited Examiner acknowledges that because of the nature of Confidential Information, damages or an account of profit may not be an adequate remedy for the Safety Director if there is any unauthorised use or disclosure of the Confidential Information of if there is a breach of these Terms and Conditions. The Accredited Examiner acknowledges that the Safety Director is therefore entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach by Accredited Examiner in addition to any other remedies available to the Safety Director at law or in equity.

7.

Audits and inspection

7.1

7.2

The Safety Director may undertake audit activities as detailed in part 6 of the TSV Maritime Accreditation of Examiners for Certificates of Competency: Administration Procedures. If the Safety Director conducts any of the activities in clause 7.1, it must provide an audit report to the Accredited Examiner consistent with the template in Appendix 2 of the TSV Maritime Accreditation of Examiners for Certificates of Competency: Administration Procedures.

8.

Suspension for non-compliance with accreditation

8.1 If the Accredited Examiner fails to carry out any obligations or duties under these Terms and Conditions, the Safety Director may by written notice (Suspension Notice) to the Accredited Examiner specify the non-compliance and request that the noncompliance be remedied within fourteen (14) days from the date of issue of the Suspension Notice. If the Accredited Examiner fails to remedy the non-compliance within the period stated in the suspension notice, the Safety Director may, by written notice to the Accredited Examiner, suspend the Accredited Examiner Accreditation and the Accredited Examiner must stop providing the examination service from the date nominated in that notice. The Safety Director may lift the suspension at any time by written notice to the Accredited Examiner if the Safety Director is satisfied that the Accredited Examiner has remedied the non-compliance the subject of the Suspension Notice. This clause 8 does not limit the right of the Safety Director to revoke the accreditation under clause 9 at any time while accreditation is suspended.

8.2

8.3

8.4

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9.

Revocation of accreditation
9.1 If the Accredited Examiner fails to carry out any of its obligations or duties under these Terms and Conditions the Safety Director may, by written notice (Default Notice), specify the non-compliance and request that the non-compliance be remedied within twenty eight (28) days after service of the Default Notice.

9.2

If the Accredited Examiner fails to remedy the non-compliance within the period stated in the default notice, the Safety Director may by written notice revoke the accreditation and terminate these terms and conditions.
Notwithstanding any other provision in these Terms and Conditions, the Safety Director may at its discretion terminate these Terms and Conditions and revoke the accreditation by giving the Accredited Examiner at least six (6) months written notice. The Safety Director will not be liable for any losses, costs or expenses incurred or claimed by the Accredited Examiner as a result of the termination.

9.3

10.

Notices
10.1 All notices under these Terms and Conditions should be in writing and served: (a) (b) by hand delivery to the Safety Director or to the Accredited Examiner; sent by prepaid post to, or left at the address of, the party as stated in the accreditation, or at the address last notified by the party by notice to the other party; or sent electronically by facsimile or email.

(c) 10.2

A notice or document shall be taken to be delivered and served as follows: (a) in the case of delivery in person or by prepaid courier, when delivered; (b) in the case of delivery by post, two (2) business days after the date of posting; (c) in the case of facsimile transmission, on receipt by the sender of a transmission report from the despatching machine showing the date of transmission, the relevant number of pages, the correct telephone number of the destination facsimile machine and the result of the machine as satisfactory; and (d) in the case of email, on receipt by the sender of confirmation of receipt, but if the result of the foregoing is that a notice would be taken to be given or made on a day which is not a normal business day in the place to which the notice is sent or is later than 4.00 pm (local time) it will be taken to have been duly given or made at the commencement of business on the next business day in that place.

11.

Other examiners
Nothing contained in or arising from these Terms and Conditions or the accreditation in any way limits or qualifies the freedom of the Safety Director to approve other examiners.

12.

Variation of terms
The Safety Director may unilaterally amend these Terms and Conditions to accord with any changes in law.

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13.

Severance
Any provision in these Terms and Conditions which is invalid or unenforceable is to be read down so as to be valid and enforceable, and if that is not possible the provision must, to the extent that it is capable, be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions.

14.

Governing laws
These Terms and Conditions are subject to and are to be construed in accordance with the laws of the State of Victoria, Australia and the parties submit to the exclusive jurisdiction of the courts of that State.

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